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ENVIRONMENTAL UPDATE
Courts Add Water Permit Hurdle to Pesticide Application Programs
Due to recent rulings by two federal appeals courts, local governments that apply pesticides or herbicides to or near water probably will need to obtain National Pollutant Discharge Elimination System (NPDES) permits pursuant to the Clean Water Act (CWA)—even where the pesticide application is for a beneficial purpose and conforms with legal requirements under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). An NPDES permit requirement will affect the ever-increasing number of local authorities that spray or otherwise apply mosquitocides to water bodies in an effort to reduce exposure to the West Nile Virus, and will impact authorities that routinely apply herbicides to irrigation canals and other waterways.
In an unpublished ruling last September, in Altman v. Town of Amherst, New York, the Second Circuit Court of Appeals vacated summary judgment granted to a town that had argued it did not need an NPDES permit to spray a mosquitocide in freshwater wetlands. 2002 WL 31132139 (2d Cir. 2002), vacating and remanding, 190 F. Supp. 2d 467 (W.D.N.Y. 2001). In Headwaters, Inc. v. Talent Irrigation District, the Ninth Circuit ruled that compliance with FIFRA labeling requirements did not absolve an irrigation district from the obligation to obtain an NPDES permit. 243 F.3d 526 (9th Cir. 2001).
In Altman, residents of the Town of Amherst, New York, sued the town for applying mosquito control pesticides in wetland areas without an NPDES permit. Plaintiffs alleged that, within the meaning of the CWA, the pesticides constituted “pollutants,” and the aerial and truck-loaded pesticide spray equipment were “point sources.”
Although the parties negotiated a settlement, the town board chose not to enter into the agreement. Subsequently, the town moved for dismissal or summary judgment. The town argued that FIFRA, rather than the CWA, controlled its pesticide application. As authority, the town cited a “position letter” from the U.S. Army Corps of Engineers that stated that no “Army permit” was required. Also, the town relied on statements from the U.S. Environmental Protection Agency (EPA) that the Agency had no specific NPDES policy for such pesticide applications, had never issued an NPDES permit for such activities, and had not compelled New York State to issue such permits. Furthermore, the town submitted that its freshwater permit, issued by the New York Department of Environmental Conservation, obviated the need for an NPDES permit. The district court entered summary judgment; plaintiffs appealed.
The Second Circuit remanded the case for further discovery and the district court’s consideration of several “threshold questions of law.” The questions included whether, under the CWA, the subject freshwater wetlands are “waters of the United States,” whether the town’s application of pesticides constituted the “deliberate discharge” of pollutants, and whether the pesticides used were “pollutants.” Also, the circuit court directed the trial court to consider the persuasive authority of Headwaters, Inc. v. Talent Irrigation District. Notably, the appeals court also called upon EPA to clarify its “ambiguous stance” regarding whether properly used pesticides released to waters of the United States trigger the requirement for an NPDES permit.
EPA has long held the view that, ordinarily, no NPDES permit is required for proper application of a legal pesticide to water. Recently, however, the agency has attempted to articulate in guidance the circumstances under which a permit may be appropriate. According to published sources, approximately a dozen lawsuits have been filed in various states, charging that an NPDES permit is required for application of a pesticide in or near water—and, in October, a U.S. House of Representatives subcommittee held hearings to explore with EPA officials the implications of this so-called “regulatory confusion.”
Inasmuch as the courts appear to have eliminated the question of whether an NPDES permit is required for the application of pesticides to aquatic areas, EPA is likely to focus its efforts on developing a general permit or other minimally burdensome regulatory approach. In the meantime, local authorities should be wary of undertaking pesticide/herbicide application to or near waterways without first obtaining an NPDES permit for this activity.